Should Customary Law be recognized by the courts?

Dave Price, Bess Price and Bess's mother, Clara Nakamarra France, at Kirrirdi, the family outstation south of Yuendumu.

I once asked an old Warlpiri man from Yuendumu, who’d worked as a police tracker for many years, why there were so many young Aboriginal blokes locked up in the Alice Springs jail. He answered; “There’s yapa (Aboriginal law) here,” indicating with his raised right hand, “and there’s kardiya (whitefella law) here,” raising his left hand. “Those young fellas are running around in the middle. They don’t know.” This same old man’s response to a member of the parole board’s suggestion that one of his son could be released from jail was; “No, leave him there. He stays out of trouble when he’s in jail.” Young Aboriginal men in our part of the world have around twice the chance of dying outside of custody than in. They are much better fed, exercise, work, and are kept away from those addictive substances that are killing them on the outside. I have met several men who have deliberately committed a minor crime so they could have a short rest from life outside. I know others who have confessed to crimes they did not commit to take the rap for kinsmen or because it’s not worth all the effort to prove innocence.

Later still I saw that old man enraged as he faced another, younger son in my lounge room. The young man was eyeing the wall clock while pleading for money. It was getting close to bottle shop closing time and he was nervous. He used every emotional blackmail trick that he knew, every appeal to the Law, to kinship obligation. The old man’s wife was in hospital critically ill. The young man expressed no concern for his mother’s illness or his father’s grief. He was only ‘worried for grog’. Under the old man’s Law a father does not question a son’s request for money, he simply gives it if he has it. “Hey I thought you were my father,” has been said to me too many times to count when I have countered a request for money from my big sons (some of them grandfathers themselves), with a request to know what it was going to be used for if I handed it over. That is not done in Warlpiri Law. In their terms I was acting shamelessly.

It is deeply painful for a Warlpiri man to feel anger towards a son. The old man struggled to express his deep frustration and anger in English; Warlpiri doesn’t work too well in this situation. His anger was almost inarticulate. He had already given the young fella money that he had spent on grog, and grog leads too often to senseless violence. The young fella had already done time in jail. I had helped out the first time in some of his dealings with lawyers and parole officers. I do that at times because I am ‘family’ to this mob. When I asked why he had been jailed the last time he answered: “For fighting.” He’d actually viciously beaten his young wife. In his world that’s just ‘fighting’ – what wives and husbands do.

I was as frustrated as the old man. I knew that if he wasn’t going to persuade our son from getting drunk, making an idiot of himself, hurting someone or being hurt and/or ending up in jail again then I certainly wasn’t. Unfortunately there is nothing in this old man’s Law that gives him the tools to deal with grog and its effects. The old ones, and those who see themselves as their supporters, will tell you that the Law never changes and this makes it superior to whitefella, ‘paper’ law. That’s a terrible pity because now it has to deal with problems never dreamed of by the ancestors, by the Jukurrpawarnu, the Creators of country and Law in that sacred, other Time. It gives them no tools to deal with the problems that have come with contact with the wider world, that we whitefellas brought with us. If there is no change then there will be no solutions, and there is no future. Whitefellas aren’t going anywhere, and Aboriginal people don’t want us to leave. They are too keen on many of the other things we have brought with us. They just haven’t taken on board the law that goes with them.

The young bloke left after we gave him a half bottle of red wine that a guest had left at our house. Only grog could satisfy him. We hoped that it wouldn’t be enough to get him into trouble, since it would have to be shared with kinsmen who were with him and they’d be equally desperate for a drop – it was after closing time and he had no money anyway.

My wife Bess was invited by Danielle Loy to sit on her expert panel at the forum at Araluen following the screening of Bush Law. I was included in the invitation at Bess’ suggestion. We agreed to come along at the time because we thought that we could make a worthwhile contribution. We truly appreciated the invitation. When the time came we were exhausted. We’d been involved in a couple of weeks of mourning the death of a loved one, we had been traveling for work and recreation for a couple of more weeks. When we got back we, but Bess in particular, had to deal with the usual flood of family issues that greet us whenever we get back from anywhere. So we didn’t attend. We rested instead.

If we had attended, we would have been well and truly outnumbered. We would have had to debate the ‘neutral’ facilitator as well. We wouldn’t have backed off from debating the issues, of course, but our views would have been seen as controversially negative by the majority of those there and perhaps as disloyal by some of the Aboriginal people present. I probably would have got angry. My Warlpiri nickname is Jurru Marntarla, which usually translates as ‘Wooden Head’. I’m proud of that name. Because I am ‘Wooden Head’ we have avoided bankruptcy several times, successfully educated our daughter whitefella way, and set up and maintained a comfortable and secure household. And I can say ‘no’ to dissolute sons who want me to fund their addictions. I have my own law. But anger doesn’t usually improve the tone of debate, as my far more diplomatic wife keeps rightfully reminding me.

It can be extremely difficult to publicly discuss Traditional Law and its consequences today for some pretty compelling reasons. Firstly there is the secrecy. There is much we cannot and won’t discuss. There is much that I can’t talk about and don’t know about because I’m a whitefella. There is much that Bess can’t discuss and doesn’t know about because she is a woman. We have been led to our beliefs by a lifetime of experience, much delightful and much of it negative and depressing. We have buried our kids. We have seen too many die, far too many suffer severe injury from almost constant violence, too many drink themselves to death. We have seen our kids and grandkids come out of years of schooling not being able to speak English, let alone read and write it, but we have also heard their Warlpiri deteriorate. We have watched too many slouch into a life of boredom, depression and drunkenness, with no hope of gainful and useful employment. But we also try to be loyal. We risk deeply shaming the ones we are closest to. We risk re-igniting violent feuds just by discussing them in public. “You’ve been talking about me,” is an accusation that often leads to serious assault. However we are convinced that solutions will only be found through open, honest debate. We try to be diplomatic and circumspect when we think it is necessary to keep the peace and to stay loyal to family. So here we go – I’m going to take a few risks.

My father in law and my wife’s promised husband, both now deceased, were probably the two men I most admire in my life. My mother in law, still alive, is up there with the women I have most admired. They were all born in the desert out of contact with whitefellas and hence the rest of the world. They were all brought up in the old Law. They had a world-view very similar, perhaps identical, to that of the Warlpiri men sitting on the expert panel. They also had profound regret for its passing. You couldn’t meet wiser, more decent and compassionate people. Their Law gave them the strength to survive incredibly difficult lives. Bess’ parents lived through the Coniston Massacres. Her father had a massive scar across his back. “It was nothing,” he told me, “just a fight when I was a young man.” Bess’ mother has outlived eight of her children. When it came to the protection of and support for their own loved ones, including the women and girls, they had the wisdom to apply the spirit of the Law rather than the letter (if it had been written that is). They all agreed to my marrying Bess. Her promised husband had given up on her. She was always a bit of a rebel. She had refused to go to his camp to begin learning the role of wife from her sister, his first wife, at the age of thirteen. This was expected under the Law. In the seventies I had seen adolescent girls badly beaten for trying to do the same thing. Bess’ father supported his headstrong daughter. There was no violence. I am delighted to say that both these men supported Bess’ marriage to me, and my father in law regularly expressed pride in having me as a son in law. He was no racist. This pride was reciprocated.

None of my in-laws expected me to be initiated into Warlpiri Law. The very idea caused hearty laughter. They respected the fact that I have my own Law. Only one man has suggested that I should take that course, a white man who himself has been through Warlpiri Law. He made the suggestion to Bess, not to me, and her answer was: “My husband is a man already,” a fact that no Warlpiri has ever contested. My personal belief is that if you can’t be a man in your own culture, you’re not going to be in someone else’s. It struck me as absurd that if I had been initiated I would have been given knowledge about my wife’s culture that she is denied under pain of death for the simple fact that she is a woman. I could not accept such an idea on moral as well as practical grounds. I also did not want to put myself into a position where I could be accused of passing such information on to Warlpiri women. So I have shown respect to my father-in-law’s Law by keeping away from the secret side of it altogether. It belongs to Warlpiri men, not to me, and I respect that fact. I therefore make the following comments from the periphery not the centre.

It seems to me that the recently renewed support for the legal recognition of Traditional Law has been at least partly prompted by an incident that recently occurred at Lajamanu, the community featured in the film. A police woman had driven onto the men’s ceremonial grounds while young men were being initiated. There was outrage expressed and a short film was uploaded to You Tube from the community, laying out their case. I was very impressed with the dignified way in which the old men of Lajamanu made their protest at the time. I was a lot more concerned with the lack of reaction to what Lyndsay Bookie, Chairman of the Central Land Council, had to say on ABC TV evening news in an interview with Eric Tlozec in response to that incident:

“It’s against our law for people like that breaking the law, they shouldn’t be there. Aboriginal ladies, they’re not allowed to go anywhere near that. If they had been caught, a woman, aboriginal lady got caught she (would) be killed. Simple as that.”

I could not see Lyndsay actually killing anyone. He’s not that kind of bloke. In fact, it could be said that he was extremely brave to make a statement like this. He only stated in public what all of us who have had anything to do with traditionally minded Aboriginal people in the NT, or anybody who has read the classical anthropological accounts, and all Aboriginal people keeping their languages and traditions, have always known but not wanted to talk about. Both men and women are threatened with execution and grievous bodily harm for offences against the Law. Rape was added to possible punishments in the case of women. There was no other way to punish except physically. Fining and incarceration were not options. There was no police force, no defence services, no courts, no prisons, only families. Every family member, male or female learns to fight to protect themselves and their kin, their lives and their honour. As a part of this traditional ethos young men are trained to believe that they have the ancient right of Paterfamilias over the lives of their wives. This is a fact of life. Lyndsay didn’t invent this Law, it is unchanging, it comes from the Jukurrpa, the Dreaming.

It wasn’t Lyndsay’s statement that disturbed me so much. It was the deafening silence of the human rights activists, the opponents of capital punishment, of the feminists and domestic violence activists, of that army of righteous whitefellas inflamed by any public expression of what they deem to be racism or sexism that happens to pop up in the public domain, from any other quarter. Even Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, White Ribbon Ambassador and self-described Kungarakan and Iwaidja elder had nothing to say, no response. Perhaps he missed the news that night. So I can only assume that threatening to execute women is OK in Australia as long as it is done by someone who is male and indigenous, it is done for cultural reasons and the women threatened are also indigenous. It’s OK. It’s their culture. They know the rules. They have to cop it sweet. Apparently social justice is not an issue within Aboriginal culture for the Social Justice Commissioner.

There was also deep and deafening silence when Harry Jakamarra Nelson, a tireless campaigner for the recognition of his culture and law, told Yaroslav Trofimov of the Wall Street Journal that “women have no power in our culture.” The Yuendumu Women’s Centre had set up its own community store so that income management could be allowed to operate in Yuendumu. The women were tired of the mismanagement, high prices and poor stocking of the other two grocery retailers in the community. Mr Nelson sat on the management committees of both these retail outlets. He accused the women of splitting the community – and, besides, they had no right to speak and act in their own interests because they were Warlpiri women with no power. Is this the Law that we are being asked to allow our courts to recognize and support?

Every time I have brought this issue up with whitefellas and often with Aboriginal women as well I get a predictable response: Aboriginal women generally know enough not to put themselves in a position of risk in relation to men’s business so there’s no problem. But issues like ‘justice’ and ‘human rights’ are always debated in terms of the principles involved rather than on the basis of how the consequences of their denial can be pragmatically avoided – except when ‘culture’ is involved. Hasn’t anybody noticed the horrific rates of homicide and assault that Aboriginal women suffer at the hands of their men folk? Does this plague of violence have nothing to do with ‘culture’? Does anybody care?

There’s nothing new about the idea of allowing Aboriginal people to sort their own problems out. This is Baldwin Spencer, then Chief Protector of Aborigines in the Northern Territory in 1912;

‘I went out to Fanny Bay … to interview four native prisoners who have been brought in from out west. Three of them are charged with murder and one with inflicting grievous bodily harm. So far as I can tell the three former have only been carrying out their tribal customs. We have enough evidence to make a good case. I remembered that some years ago Chief Justice Way of South Australia had given his opinion that, in dealing with wild natives who know nothing of white man’s law, the just thing to do in any case, for example involving a charge of murder, was to take into account their tribal customs, and this aspect will be laid before the court.

…Then the two murder cases came on. In the first, two black boys had speared a lubra, in the second one boy had speared another. The actual killing was not denied. We relied on the fact that the whole affair was a tribal matter and must be regarded from this point of view. The judge was fully seized of this aspect, which he carefully explained to the jury. The foreman, fortunately enough, was a man who had considerable knowledge of the natives, but even so, rather to my surprise, in each case the verdict was “Not guilty.” ‘

Sir Baldwin wasn’t concerned in his role as Chief Protector to protect ‘lubras’ or ‘boys’ from execution under their own Law. Many contemporary defence lawyers run the same line. “My client admits to killing his wife your honour but it was in conformity with Customary Law; she swore at him and prevented him from attending a ceremony so it’s not really murder, it was justified under his Law.” The same refrain is repeated over and over again.

Some things have changed since Baldwin Spencer’s day. I can forgive him. He was doing his best within the zeitgeist of the times. The former Chief Magistrate, Michael Ward pointed out rightly that this tradition has continued into recent times. Many magistrates trying to apply the principles of justice to their decisions have felt the need to take into account the fact that often both perpetrator and victim of violent crime live by a Law very different to that enforced by the courts. Michael Ward still showed respect for that law. He pointed out that a lot of whitefellas have been trying very hard to ‘do the right thing’ in recognizing Traditional Law within the limits of the Australian law they are pledged to uphold. I am very sympathetic to his point of view. There is much in Traditional Law that can be and should be recognized because it is not in conflict with Australian Law or the human rights of the people involved. There are other aspects of the Traditional Law that are antithetical to Australian Law and to the principles underlying the idea of Human Rights – a cultural artifact invented in the West.

Apart from the gross and obvious discrimination against women there are other problems with Traditional Law that Aboriginal people find very difficult to discuss or just ignore completely. They are ‘inconvenient truths’. The Law is never applied impartially, traditional justice is not blind. Nobody who is not related somehow to the victim or the perpetrator of the crime being punished gets involved. It is family business. If you’re not related, it’s none of your business. Australian law ensures, as far as it can, that judgement of guilt or innocence is impartial and based on the evidence available. With serious crime it is made by a jury of peers with no connection whatsoever to the victim or perpetrator.

Payback is often called upon to punish crimes committed by sorcery. In my experience, all premature death and life threatening illness is believed to have been caused by sorcery. Accusations of sorcery are routine and cause tremendous tension and resultant threats of violence. It is very difficult for me to give examples without being unnecessarily disloyal or increasing tensions that already exist, so I won’t. But I can say that I am often involved in conversations around this issue with people for whom it is a central issue, people very close to me whose welfare is one of my deepest concerns. How do our courts handle this problem? If they choose to ignore it then they are ignoring one of the primary causes of interfamily tension and feuding. I didn’t hear it mentioned during the forum.

What about whitefellas? I know of at least two who were hospitalised as a result of the application of Traditional Law, one involving a fatal car crash and the other an unintended intrusion into a funeral party. Does the law then discriminate on the basis of race as well as gender? Payback is good enough for blackfellas, but whitefellas will be protected from its excesses. What about families like mine? We are racially and culturally mixed, as are hundreds of families in Northern Australian, and one hundred percent Australian. Do I get a say in how the law is applied in cases involving my own family or does my ethnicity preclude me from having a say? Do others for whom I have no respect get to have a say because of their ethnicity alone. Around a third of the population of the NT identify as indigenous. Intermarriage is increasing dramatically. Past laws against it failed miserably. Matters of crime and punishment affect us all. If I get a choice then I want the full protections of Australian and international law to be extended to all members of my family on the basis of the rights as Australian and World citizens, not on the basis of their ethnicity.

There is also the problem of grog and the abuse of other substances both legally and illegally available. Decisions now made by old and middle aged men and women do not carry anything like the weight they used to. I watched families, including my own, embroiled in a feud caused initially by a fight between teenagers that went on for eight years. Senior and mature people on both sides, including my wife, tried several times to end the violence. Younger, hotter, often drunk, heads just as often undermined their efforts. More violent incidents caused a realignment of alliances. Your worst enemy one week can be your best friend the next. I too have seen the application of customary Law go well with good results. I have more often seen it all go very wrong and cause more problems. There is no council of wise elders who can adjudicate and whose decisions will be respected by all involved. We are now losing the old ones, born and raised in the desert, with the wisdom to apply the Law with a real sense of justice. Very few of the younger generations now are living long enough to learn that wisdom, and there is nothing in the old Law that gives people the tools to cope with the new problems. Samson and Delilah don’t have much of a chance once the petrol destroys their brains. Their film fantasy world, their desert idyll, will not last long.

As Mr Ward also points out, there is tremendous variation in Traditional Law across the NT let alone across Australia. Different language groups have different Law. All of these groups are now very mobile, mixing and intermarrying much more than ever in the past. This causes new tensions while decreasing old ones. Whose Law do you apply in, say, a dispute between Warlpiri and Alyawarr, let alone Warlpiri and Tiwi? If a man from Lajamanu commits a crime in Katherine, should Jawoyn Law apply to him? The advantage of the Australian law is that it applies to all equally and should not take ethnicity or language into account. When I raised some of the issues I have mentioned above with the UN’s Special Rapporteur at a forum at CAT there was no disagreement expressed by other participants. In fact, many around the room were nodding their heads in agreement. In response to me, Rosie Kunoth Monks claimed that the problems I raised might be a reality in Warlpiri country, but everything was just fine on her side of the highway. Apparently all is well in Alyawarr country and her community’s name ‘Utopia’ is entirely appropriate. I would like to have heard a response from the Warlpiri men present on that point. In Alice Springs we hear Alyawarr, as well as all the other languages in the Centre including English, being spoken by humbugging drunks in the street. These problems face all of us equally. We are all in this together.

Though I agree with him to a point, I am disturbed by the former magistrate’s suggestion that all you have to do is grant bail so that an accused can attend a ceremony, not letting on that will involve the inflicting of grievous bodily harm, possibly resulting in death, before a court has determined guilt or innocence. You can do it ‘sneaky way’. This idea is deeply disingenuous, one could say racist. Can you get away with that sort of deceit when dealing with whitefellas in the courts? I am far less sympathetic to the views of contemporary defence lawyers, represented on the panel by Mr Dooley, who continue to run Sir Baldwin’s line. He disparages ‘white man’ law which he says is, “going even further away from the type of law that looks like it might actually work.” It is all about building new police stations and jails, about ‘exterminating’ Traditional Law, he says. He tells us and his clients that no new houses will be built with intervention money: this in direct contradiction to what our elected representatives, white and black, at all levels of government, are telling us. He knows better than all of them. His agenda is political, and naïvely so, and has nothing to do with justice. There is no concern expressed for the victims of his client’s violence. There is no mention of the fact that families of victims of violence, and of the perpetrators often oppose bail, not just the police. I know many families who want whitefella justice because they appreciate its impartiality. There is no mention of the fact that police stations are being built in communities at the request of the communities, most particularly of old people and women, most often the victims of lawlessness. Listen to Mantjara Wilson, a very senior Pitjantjatjara woman speaking from Mutitjulu:

“We have had rape, we have had sniffing, we have had people selling marijuana and we have had abuse of children, It’s not going to go away until we get some proper community rules in place to deal with these things. If there are no rules nothing will change.”

Her people were among the last to come out of the desert, those who we could most expect to have retained the Traditional Law. Mr Dooley, a white man trained in the ‘white man law’ he seems to despise, would see us take away the last defence available to the most vulnerable in the remote communities in the interests of maintaining a male-dominated utopia of his imagination. I think he spends far too much time in conversation with perpetrators and nowhere near enough consoling the victims as we regularly do. After all, that’s what his job’s about.

The biggest problem with adopting old Sir Baldwin’s approach is that we are no longer dealing with wild natives who know nothing of the white man’s law’, ‘lubras’ and ‘boys’ whose lives are expendable in the great civilizing mission to tame the land and its natives. We are dealing with contemporary citizens of Australia and the world with, I would have thought, exactly the same rights as other citizens. Hasn’t the achievement of that been the central aim of the struggle against racism of the last eight decades?

Since the Second World War we have had the United Nations Organisation, a favorite court of appeal of human rights activists everywhere when they are feuding with their own governments. In the preamble to the Universal Declaration of Human Rights of 1948there are references to ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family,’ ‘freedom from fear and want,’ ‘the dignity and worth of the human person and in the equal rights of men and women.’ Article Two makes it all pretty clear;

Article Two

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

We already have a problem with Traditional Law, then, if we have any respect for this Declaration and the UN. To begin with, Traditional Law is based on fear. A senior woman from Papunya told me that the young ones she was escorting to face traditional punishment were literally pissing themselves with fear. In this case they were the female kin of the accused male perpetrator. They had to share in his punishment for the crime of being related. It is about revenge and blood lust as well restoring the balance and maintaining the peace, and the lives and physical wellbeing of the most vulnerable are expendable in this process. The statements by Mr Bookie and Mr Nelson surely demonstrate that Traditional Law also denies that women have rights equal to those of their men folk. This directly contravenes Article Two as well as Article Seven.

Article Seven

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

I am not a lawyer but I think a case could be made that those who encourage the legal recognition of Traditional Law may be ‘inciting such discrimination.’ I would certainly see it that way if my own loved ones were involved. Payback and other traditional punishments also contravene Article Five:

Article Five

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

I believe most reasonable, educated Australians would regard the repeated stabbing of the thigh and other parts of the body with a heavy, wooden spear or repeated beating of the head and limbs with an equally heavy and large woman’s fighting stick as something akin to torture – certainly ‘cruel and inhuman.’ Rape as a punishment would be seen as all that as well as degrading, surely.

As I have seen it operate Traditional Law also contravenes Article 16:

Article 16

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

Probably most forms of Traditional Law, including that of whitefellas, violate this article. Under Traditional Law neither spouse had much say in their arranged marriage, and I have personally known young women who have been, forced out of school, severely beaten, in some cases to the point of permanent physical and psychological damage, because they were not keen to enter into an arranged marriage. Families committed to Traditional marriage usually take no action to protect the young women from all of this. It conforms to Traditional Law. This is a painfully common story. Now the majority of young people, male and female, are marrying, or at least forming sexual relationships in total disregard of Traditional Aboriginal or white man’s Law. Hollywood and MTV have much more influence on young people than do ‘elders’, courts, police and lawyers.

We have other statements in the preamble to the Declaration that I believe have a bearing on the expressed views of the magistrate, the lawyer and the whitefella-educated Aboriginal members of the expert panel;

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, therefore,

The General Assembly,

Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under theirjurisdiction.

In other words, the authors of this Declaration expected that the people of the world, the citizens of the world should be educated in the principles underlying the Declaration by ‘every organ of society.’ Surely magistrates and lawyers should be in the front line of this educative effort when it comes to law so that we can make, not only whitefella law, but also Aboriginal Traditional Law, become ‘the type of law(s) that looks like (they) might actually work.’

The Universal Declaration of Human Rights was made in the aftermath of World War II, which saw the overwhelming victory of the democratic, liberal and, at the time, imperialist West over European and Japanese fascism and racism. Its wording and sentiments echo that fact. The lives of at least 50 million individuals were destroyed by that war, begun by regimes built on the total denial of human rights. In later years, following decolonization of the Japanese and European (but not the Soviet or Chinese) empires and the huge expansion of UN membership to include new, independent nation states, concern was expressed for the rights of ethnic and cultural minorities within those states. Declarations were made about collective, as well as individual, rights that are supposed to be acknowledged and assured along side the rights of individuals.

And this is where the problems start. Herein lies an inherent tension. Ethnic minorities are to have the right to express their distinct identities, live their cultures and speak their languages and do this with the positive support of the nation states of which they are a part. At the same time the individual rights of the members of these minorities are to be respected as is stated in clearly in The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, (1993):

Article 4

1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.

The most recent attempt at recognising and protecting the rights of minorities is the Draft United Nations Declaration on the Rights of Indigenous Peoples. Once again group rights are to be balanced against the individual rights of the members of these ethnic groups.

Article 1

Indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

Article 6

Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext.

In addition, they have the individual rights to life, physical and mental integrity, liberty and security of person.

Article 33

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.

But here comes the clincher:

Article 43

All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

So here is the conundrum: how do you maintain an unchanging Law that routinely discriminates on the basis of gender and age while equally protecting individual rights as defined by the UN? It’s a hard one.

The answer lies in dialogue, not ‘education’ – that hasn’t worked too well. Let’s enter into dialogue with the old ones who are asking us to recognize their law. All cultures adapt. In the year the First Fleet left England a young Irish woman was publicly burned to death at Newgate for counterfeiting the coin of the realm. They don’t do that in London anymore. In the 1830s Maoris murdered, enslaved and ate the peaceful and defenceless Moriori population of the Chatham Islands. As far as I know Maori don’t eat people anymore either. Those Englishmen and Maoris were acting according to their laws, for them, at the time, these laws worked. I have faith in Aboriginal people’s ability to adapt, because they’ve been doing it massively for two centuries. Before that there is archaeological and linguistic evidence of other slower but also massive adaptations. I have personally seen very significant changes made to the rituals around death and mourning, surely among the last to change in any society. I have seen Warlpiri people introduce innovation to respond to new circumstances, rationally and amicably, without dissent and discord. They aren’t stupid, but as the linguist at the forum, who was howled down because he had the temerity to express his views rightly pointed out, there are real problems with translating the deep philosophy underlying both legal systems to the other side. Old Jerry Jangala tried to express his Christian beliefs to the audience and was obviously struggling with the limitations of his English. Rosie Kunoth Monks was one who dealt with the linguist perfunctorily, but I have heard her struggle embarrassingly with some pretty basic Pintupi and then give up altogether, at a public event in Alice Springs. The language problem is a real problem. But still dialogue can be achieved. I have begun that process with some men who are relaxed enough with me and who are willing to take the risk of discussing their most cherished beliefs.

I discussed Lyndsay Bookie’s statement with a middle-aged Warlpiri man in private. He is a grandfather with daughters and grand daughters, Australian citizens all. He is also an evangelist and, like Jerry Jangala Patrick, has devoted his life to Christianity. When I quoted Lyndsay he agreed and repeated some of Lyndsay’s words: “Yeah, simple as that.” I asked him how he felt about that as a Christian and got no response. I asked him if he would kill a woman in those circumstances. He answered: “No,” without hesitation. I then asked would he defend one of his female loved ones if other men wanted to kill them for such a reason. Again “Yes,” without hesitation. I suggested that there should be a change to the Law. He answered that he was trying to make such changes. It is such thoughtful, loving and worried men we should be supporting and talking with. We have to stop treating them like fools. We have to stop sloganising and politicizing issues that should be apolitical. We have to give them deep thought and not be afraid to find and discuss the truth on a basis of real mutual respect, not shallow,cheer-squad type reverence.

I’ve got a personal stake in all this. My wife’s life has been directly threatened by drunk men armed with machetes and knives. They were never charged because the police adopted old Sir Baldwin’s approach: Let the wild natives sort it out their own way. But this happened in the middle of Alice Springs in broad daylight. Being a whitefella, I don’t have the right to “have my payback.” In fact, almost all adult kin close to me, my loved ones, have been both victims and/or perpetrators of illegal violence. All involved believed they were adhering to the Law. One of my beautiful, intelligent Warlpiri grand daughters just got six months for repeated drink-driving on top of a stabbing charge, I’ve been told. One of my ex-students, after traveling 300 kilometres in an unregistered car with no windscreen, no lights and no brakes (White man’s law doesn’t work you see) told me that she was soon going to court. “Why?” I asked. “I stabbed one girl.” Again: “Why?” “She stabbed me first!” And Mr Dooley tells us we don’t need police stations. There’s no Customary Law solution to these particular problems. My granddaughter has also been hospitalized several times by the young initiated man she calls ‘husband’ and is still loyal to. She and he both went against all the advice of the ‘elders’. They had married ‘wrong way’ against the clearly stated wishes of their senior relations. She could have been another Larissa Behrendts if her human rights had been respected, if she had grown up in Larrissa’s version of indigenous culture.

A couple of weeks ago my eldest grandson told me that he wanted to go to ‘bush camp,’ that is, he wanted to be initiated. He’d picked up this idea from Aboriginal adolescents in town who, under the Law, should not be talking about initiation at all to kids his age. He didn’t know what happened there and wanted me to tell him. I couldn’t do that because he is a child. You’re supposed to find out when it happens to you. If I’d told him, both he and I would have been under sentence of death back in the good old days before the imposition of white man’s law. His other grandparents are not Aboriginal. He inherits several heritages other than that of his Warlpiri grandmother. I told him that he would learn of these things when the time came and that the whole family, both sides, would be making the necessary decisions. The clash between Warlpiri customary Law and Australian Law has already profoundly affected the lives of all my Warlpiri loved ones. I have seen the good and the bad effects of both laws. The contemporary interpretation and practice of Customary Law is already having an impact on my grandsons. Under that Law, as their grandfather, I have a central role in deciding how it will affect them. I want them to think of themselves as world citizens, that is their heritage. I want them to have exactly the same rights as any other Australian citizen has in relation to the laws that govern their lives. I also want them to be proud and loving men who see women as their equals not their subordinates or their property.

I am a whitefella but for me this issue is not academic. For my grandsons’ sakes I need to engage my Warlpiri family in a dialogue concerning how their Law will impact on them. Danielle Loy has opened up this debate, once again, in the public domain. I welcome it. But we can no longer afford to base it on shallow romanticism and white, middle class, clueless radicalism if we want Aboriginal Australians to truly share the benefits of Australian and world citizenship. We have to involve a wider circle of serious minded people than were present at Araluen for the forum. We need to do some very hard thinking and talking to get the answers right.

7 Responses to “Should Customary Law be recognized by the courts?”

The ramblings of a culturally confused person. Stop the Intervention: Human Rights for All, and especially those whose rights have been taken away under the Northern Territory Intervention. Racism suxxx.

Dear Dave the Customary Slave, because that’s what I can only guess you’re trying to say we all are, slaves to customary laws.

You conclude with a veiled hypothesis of what may have taken place had you attended the forum.

You first accept an invitation, then knock it back (perhaps understandably) but then decide to criticise the film publicly without the threat of rebuttal.
Not forgetting you admit you may have been in minority about your opinion (while telling the world that there’s more that think like you).
On top of that, you then hypothesize what could have taken place, quite dangerous; prejudiced to presume and speculate, but hey, who’s going to stop you.
It’s ok for you to demand equality; spout off about rights while you blatantly attack those who stand up against the denial of certain rights by a white government with token black head nodders.
You speak of silence from those who fight injustices and yet did you ask your best mate, Mal Brough, for an apology when it was found there are no paedophile rings in Central Australian Aboriginal communities? I don’t think so.
We could play this game all day and just end up like Gaza but do you actually get down to discussing possible solutions that relevant Indigenous locals and experts have thought of, or is it just more of the same paternalistic ‘Brough Love’ where the white experts know best and which you long to see ingrained into the constitution.
You complain about not being given a voice at anti-Intervention rallies and forums but how often are those same under-privileged peoples given the opportunity to sit down with high level government officials to be consulted as you are?
Why should you speak at a pro-human rights rally? You support the intervention, it’s breaches of Indigenous rights and the top down laws that came with it.
We know where you stand and how much you hate the Kooris, Murris and white agitators from down south who speak against erosion of First Australians’ Rights, it’s in your speeches and opinion pieces which are the only ones on the issues that get printed in the conservative newspaper, the Australian.
On one hand you mob talk about wishy washy lefties with rose coloured glasses who romanticize too much, yet it suits you when you talk about wallowing in the victimhood of abuse suffered by the hands of your own family: sulking on one hand about being neglected in the family cultural construct but then talking about making cultural decisions in the next breath.
Fair enough, it’s confusing, that’s why the Indigenous Affairs Portfolio goes to the cannon fodder, because it is complex, clashing and confusing… this doesn’t mean it’s all our fault again, and no, it doesn’t mean it’s all ‘whitey’s’ fault either, we know we got to sort it out and take responsibility, but oppression and dictating to people is what led to the Rwanda tragedy you so love to remind the United Nations about.

So get on with it then, how do we work it out together?
Where is the true inclusion, the true analysis and development, not based on economic viability but true community development…
and yes, I am Aboriginal, employed and I do own my own home but I don’t live in the ‘squalor’ that is the savage social, cultural and racial discrimination you support.
“It is hardly a moral act to encourage others to patiently accept injustice that he himself does not endure.” Martin Luther King Jnr.

Mr Price, in the first paragraph of his article, misses the poignancy (if not tragedy) of the response from a Warlpiri man that his son should remain in jail as he ‘stays out of trouble when he is in jail’. Does Price not question the system that is warehousing these young men? Is it not a concern that incarceration is a growth industry in the Northern Territory with young Aboriginal men the biggest contributors to this expansion? I’m sure the warehousing of ‘stolen generation’ children who were clothed, fed, educated (minimally) and trained (for specific industries) was seen as a good thing by the ‘powers that be’ of the time. We as a society and the children who were removed from their families are still coming to terms with the effects of those policies.
Does Mr Price really think that government control is the answer to the problems that afflict Aboriginal people and our wider society?
I suppose I should not be too surprised that Mr Price has again taken the opportunity to criticise human rights activists who did not jump up and down in response to a media release regarding a transgression at a ceremony ground at Lajamanu. Despite continuing denigration by Mr Price, the human rights activists in Alice Springs, Darwin and around the country who are calling for a recognition of Aboriginal people’s rights are not affording themselves “shallow romanticism and white, middle class, clueless radicalism” (to quote Mr Price). Many of them are doctors, lawyers, members of different religions, unions, educationists, scholars. Most activists are well-used to the misreporting and misrepresentation taking place in mainstream media which overly utilises Mr and Mrs Price’s writing ‘talents’ but tends to ignore voices not supporting the government’s agenda.

An example regarding misquoting: Mr Price continues to use and misquote from an article by Yaroslav Trofimov in the Wall Street Journal. This article quotes Harry Jakamarra Nelson of Yuendumu as stating: “The government has listened to a minority group of women …… who do not have any power in the eyes of Aboriginal law.” There are words missing from this quote. There are words missing when Mr Price use it as he continually quotes Mr Nelson as saying “Women have no power in our culture”. This is not what Mr Nelson said and Mr Price knows it is not a true statement.

We are all losing loved ones to the ravages of social ills and the impact of rapid westernisation with little or no education or support to deal with the issues. I prefer not to rant on about the losses in my Aboriginal family to diabetes and kidney failure, alcoholism, violence (a 10% increase in rates of violence in the past year), suicide, incarceration; people being jailed for making and consuming a concoction of home brew because alcohol is now totally banned.

Whingeing and whining from afar will not fix things. Assisting the government to understand where its policies are wrong and what community support is needed might help. Ensuring the government meets its commitments to human rights and the rights of indigenous peoples when drawing up those policies would be a giant step in the right direction.

But the input has to come from the ‘people on the ground’, not imported bureaucrats who undergo a short cross cultural course and immediately become experts on Aboriginal culture. We are talking about humanity here. It is about respect, not arrogance. Culture is much more than a mere commodity.
I watched the film clips of the forum held after the screening of the ‘Bush Law’ film. I listened carefully and was impressed by the integrity of panel members and their considered responses. To quote a few:

“The empty words cannot keep on in Australia.”

“We need to have two laws.”

“We are all under one group of stars.”

“Payback is a vulgar translation (of the healing process)”.

For it seems to me, this is what customary law is all about – a process of healing that is important to Aboriginal people who still hold country in their hearts.

An interesting, comprehensive, informative and instructive contributions to the debate, Dave.

Your experiences, both personal and private, are a great addition to the discussion process. May they continue into the future so that we are all aware of differing perspectives. Perhaps then, we can reach some agreement on ways forward into our collective futures.

A clarification of the quote in the previous posts would help. The statement used is “The government has listened to a minority group of women …… who do not have any power in the eyes of Aboriginal law.”
Could Dave Price or Marlene Hodder please supply the full quotation and fill in the missing words?

This comment is about 2 years after this blog. I happen to stumble across it. I was amazed at your courage and your ability to be in the depths of the chaos that is aboriginal life. I have supported every effort to regognize legally the status Aboriginal people. As a child I visited Pt McCleay with a neighbour who supplied necessities for the store. Later as a antique dealer many aboriginal artifacts came into my possesion, including Kadaichi shoes. I walked across the bridge and signed the “sorry book”.
Now I believe the aboriginal people of Australia are their own worst enemy. I am pleased to see the Liberal party endorsing aboriginal candidates. Aborigines must join Australia. They are not the only ones who have lost. I hardly recognise my country now with the massive influx of world cultures. However I will not stay in the past and if I was a young aboriginal person I would start a political movement to challenge the old ways that are barbaric and have no place in a modern world. As a white anglo saxon celtic 4 generation I am tired of fighting for groups that won’t or refuse to accept that the safety and life of the young people and future generations is more important than any macho initiations. The greatest initiation is to live in a white mans world peacefully, even for a white man because the law does not discriminate on colour race or sex. I am 65 years old and say to the younger aboriginal generation. Accept the law that is international law and if the old will not put quality of life and wellbeing first then organise political groups and vote them out. Creat your own new laws for a new time.
It’s not easy but if you grew up white and saw the hopeless state of aboriginal people and eventually realise that you have to walk away from them because they break your heart you would understand.